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Obama may issue signing statement objecting to Congressional prohibition of transfer of Guantanamo detainees

ABC News reports:

President Obama may formally object to a provision that would prohibit the use of any funds to transfer detainees from the detention facility in Guantanamo Bay to the United States for any purpose.

The provision — attached to the Defense Authorization bill — would be a critical blow to the president’s stated goal of trying some Guantanamo detainees in civilian courts. Attorney General Eric Holder sent a letter to Congress late last year calling the provision “an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist suspects.”

A final decision on whether to issue a so-called signing statement, which was first reported by ProPublica, and its scope, has yet to be made by the president and his senior staff.

Signing statements are legal documents that a president issues to outline how he thinks a law should be implemented. The statements can be largely ceremonial, explaining the president’s view of the effects of the bill, or they can go as far as challenging the constitutionality of the provision and stating that the president will refuse to enforce it.

A White House official said Monday that even if the president decides to issue the signing statement, he will not seek to bypass the Guantanamo restrictions. The statement instead would reflect Obama’s intention to seek a reversal of the provision through Congress.

Obama’s use of signing statements so far in his administration has been in line with other presidents from Reagan to Clinton, who each issued about a dozen constitutional challenges a year. It was the George W. Bush administration that used the statements much more frequently when it thought legislation might negatively impact presidential power.

Obama issued a memo in March 2009 to the heads of all executive branch departments and agencies, saying he would continue to use the signing statements but would do so more sparingly than the Bush administration.

“I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities,” he wrote.

Signing statements “serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the president’s constitutional obligations to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress,” Obama wrote.

I am not a fan of signing statements, but I do think that provision of the law is an unconstitutional interference in the authority of the president.

HT: Neal Sonnett

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.